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Gerald Marshall Case 3: The state's misconduct

The state suppressed evidence about the circumstances of the crime

In Gerald Marshall’s trial, the state confidently presented it as a fact, that only one robber had entered the Whataburger. But at Ronald Worthy’s trial two officers testified, that they concluded based on their investigations, that two robbers entered the Whataburger. The detectives notes never were disclosed to the defense.

The state hid important facts from the jury

It is essential to understand that if the state had admitted, that possibly two robbers had been inside the Whataburger at the time of the shooting, they could have hardly proven beyond a reasonable doubt that Gerald Marshall was the shooter, because there was a jury instruction to only convict Marshall, when it was proven that he personally shot the victim.

This was so important, that even the jury sent out a note asking about this matter when deliberating. 

One crime, two truths

The following is a quote from the closing argument of Colleen Barnett, the same prosecutor, who secured Gerald’s death sentence with the argument, only he was inside the Whataburger:

And you know after you listen to him, that this defendant [Ronald Worthy] was inside the Whataburger. You know that they were his guns.

You know, that he’s guilty of capital murder.

The state knowingly used perjured testimony of Kenny Calliham

The state was in possession of evidence, that would impeach Calliham’s credibility. In it’s possession it had an interview with cellmate Meyer (who had helped Calliham and Worthy write their affidavits), who informed the state about the fact that Calliham had admitted prior knowledge of the planned robbery: that they had stopped before the robbery to divide up the guns and that both Worthy and Gerald Marshall were armed during the commission of the offense.

During Gerald Marshall’s trial the prosecution had presented Calliham’s testimony, who claimed to have known nothing about the robbery, as credible and lacking any contradictions. Calliham told the jury, that his story was the same he had told all along.

Nothing could be further from the truth. And the state knew it.

The prosecution and HPD have a pattern of withholding evidence

Recent findings in another Harris County capital case raise significant concerns about the integrity of prosecutor Colleen Barnett and the Houston Police Department:

In October 2019, the 180th District Court of Harris County issued findings of fact and conclusions of law in State v Ronald Hamilton, Jr. .

The court’s findings show the HPD’s history to suppress exculpatory evidence The court was “troubled by the prosecution team’s active suppression of exculpatory evidence. It determined that “both the Houston police department and trial prosecutor Colleen Barnett actively suppressed exculpatory evidence that petitioner was excluded from contributing the fingerprints at the scene and particularly on the 40-ounce bottle that a witness saw the shooter set down”.

Police Misconduct

During one of the statements Gerald Marshall gave to the police, the officer who conducted the interview left the room for a while. According to Gerald Marshall, then two other officers entered the room and one of them physically assaulted him. Gerald then stated multiple times, that he wants to terminate the interview.

The original video taped statement was labeled state’s exhibit 44.

“Redacted” evidence

During the trial against Gerald Marshall, the state played a redacted version of the tape, exhibit 44-A. The prosecution would claim they had cut out larger portions of the tape where the topic of probation was raised.

When the tape was being played, Prosecutor Wisner fast forwarded the tape to the part where Officer Breck McDaniel left the room for a while. Wisner then asked McDaniel what Gerald Marshall did during his absence and McDaniel replied “nothing, he just sits there”.

Right to remain silent ignored

This statement was not true though. In fact it can be heard on the tape that Gerald Marshall states “That’s it, I ain’t saying shit else”.

When the tape was played to the jury, Gerald’s lawyer Mack Arnold, who was wearing a hearing aid, suddenly got up and requested a bench hearing with the judge, since he “could have sworn” that he just “heard my client say, I want to terminate the interview”.

In the course of this bench conference then the following exchange took place:

“Mr. Arnold: I may be wrong because as you know I don’t hear all that well; but I would have sworn I just heard my client say, I want to terminate this interview?

The Court: Really?

Mr. Arnold: Very last thing he says right there.

Mr. Wisner: If you want to rehear it, that’s fine. He may say a couple of times I want to terminate. [!]

Mr. Arnold: First time he says it, it becomes effective.

The Court: That’s fine.

Mr. Wisner: That’s fine with us.”

Judge Stricklin misinformed the jury

Judge Debbie Stricklin though never disclosed this to the jury.

Instead she explained the playing of the redacted version of the tape before it was played as follows : “Ladies and Gentlemen [of the jury], I need to tell you that certain parts of this video tape have been deemed not relevant to this case so they have been deleted”.

It is important to note, that Judge Stricklin knew about the content of the tape already before the trial, when this was made an issue during a suppression hearing. Her misleading comment to the jury about the state redacting Gerald Marshall’s comment is evidence, that she was biased and thus Gerald Marshall has been denied a fair trial in front of an impartial judge.

Gerald Marshalls constitutional right to confront the state’s witness (Medical Examiner) regarding the autopsy was violated

During trial, the state called Dr. Roger Milton to give testimony about the autopsy of the victim. Dr. Milton had not performed the autopsy, neither was he present for any portion of it. He testified that the autopsy was performed by Dr. Lisette Lester under the supervision of Dr. Harminder Narula. Though Dr. Lester worked in Memphis at the time of the trial and Dr. Narula was retired, the state presented no plausible reason why neither of them was available as a witness.

After giving some testimony on the gunshot wound and the distance he believed the shooter was standing from Chris Dean when he was shot, Dr. Milton testified that “he was not prepared” to testify that the person who shot the victim should have gotten some blood on his clothes. This unconstitutional failure of the state to allow the defense to cross-examine a witness and derive valuable information regarding the crime, effectively robbed Gerald Marshall of the opportunity to prove, that someone else and not him (who had no blood on his clothing) shot Dean.

It is important to note here, that according to the police report significant amounts of blood had travelled around the victim’s head in a “half moon pattern” so from that fact alone and the short distance of the shot, it can be concluded that the shooter must have gotten some blood on himself.